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Smith v. Lind

United States District Court, W.D. Wisconsin

October 24, 2016

WALTER SMITH, Plaintiff,
v.
BETH LIND, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER, Magistrate Judge.

         In this civil action, pro se plaintiff Walter Smith, currently incarcerated at Stanley Correctional Institution, claims that various employees of the Wisconsin Department of Corrections (“DOC”) violated his statutory and constitutional rights by providing him nutritionally-inadequate Ramadan meals that made him sick over several years in spite of his repeated complaints, they denied him traditional foods for a Muslim feast, they denied him a nutritionally-adequate Halal diet consistent with his religious beliefs, and they denied him regular access to group religious prayer and study meetings. Smith has been permitted to proceed on First Amendment, Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-2(b) and Eighth Amendment claims against some of the defendants. Defendants have filed a motion to dismiss certain claims (dkt. 16). I am granting the motion in part and denying it in part.

         ALLEGATIONS OF FACT[1]

         A. Parties

         Plaintiff Walter Smith previously was incarcerated at Waupun Correctional Institution, and the allegations in the complaint concern his time at Waupun.

         I granted Smith leave to proceed on his claims against the following defendants who are or were Waupun employees: Beth Lind and Robert Tuckwell, past and current food service managers, respectively; Sandra Hautamaki, the program director; Michael Thurmer, the former warden; William Pollard, the current warden; Capt. Muraski, the program security captain; Belinda Schrubbe, the health services unit (“HSU”) supervisor; Michael Meiser, a reviewing authority; and Francis Paliekara, the chaplain.

         I also permitted Smith to proceed against other DOC defendants that are located in Madison, Wisconsin: Ismeal Ozanne, then the “OOS” for the DOC; Mr. Lundquist, the DAI (department of adult institutions) representative for the DOC; and Jon Litscher, the current Secretary of the DOC. Although Smith listed a John/Jane Doe in his complaint, described as the DOC dietician who ordered the Ramadan meal bags for the prison, I did not explicitly permit him to proceed against that defendant. However, Smith recently filed an Amended Complaint, in which he has substituted defendant Christine Berndt-Miles for that defendant. (Dkt. 33.) Berndt-Miles has answered the Amended Complaint, and defendants have not moved for her dismissal (dkt. 35), so now I will permit Smith to proceed against her as well. Finally, I permitted smith to proceed against Zakaria Nurdeen, the chaplain at the Racine Correctional Institution; and Ronald Bayeh, the chaplain at the Milwaukee Secure Detention Facility.

         B. Denial of Adequate Ramadan Bag Meals

         Smith is a practicing Sunni Muslim and has been for more than 20 years. As part of his faith, Smith fasts every year for the month of Ramadan. Dating back to 2007, Smith contends that he has been denied nutritionally and religiously adequate meals for the month of daily fasting during Ramadan. I granted him leave to proceed on RLUIPA and First Amendment claims against several defendants for their failure to provide adequate meals during Ramadan, as well as an Eighth Amendment failure to protect claim against defendants whom Smith told about the detrimental health effects of the meals but did nothing. Smith's allegations by year:

         (1) The Year 2007

         On June 3, 2007, Smith wrote to defendant Hautamaki, Thurmer and Muraski regarding the approaching month of Ramadan and his concerns about the “unhealthy cold meals” that would be served. (Compl., dkt. 1, at 3.) Smith complained that his previous receipt of those bags of food at Green Bay Correctional Institution from 1997 to 2006 resulted in severe and long-lasting digestive issues that on three occasions required antibiotic treatment. Smith received no response. Despite his request for warm, healthy meals for Ramadan, on each day from September 13, 2007, to October 12, 2007, Smith was served cold bag meals consisting of food for dinner and breakfast, and Smith had terrible abdominal pains, cramps, diarrhea, etc., after eating those meals, which continued for six to seven months and required medicine to help his digestive system.

         Smith and other Muslim inmates filed an inmate complaint, and Smith was told to contact Food Services Administrator Lind, which he did on September 29, 2007. Lind responded on October 1, 2007, that the bag meals had no problems, and that the Food Services Manual required two bag meals, neither of which had to be hot. Smith refiled his inmate complaint, and ultimately Thurmer dismissed it.

         (2) The Year 2008

         In 2008, the events of 2007 repeated themselves. In June of 2008, Smith wrote a letter to Hautamaki, Muraski, and Thurmer complaining of his history of abdominal and other health issues relating to the Ramadan bag meals. Smith received no response.

         Between September 2, 2008, and October 2, 2008, Smith received cold meal bags, with cold and frozen food and no way to heat the food. The bags also contained far less in calories than that served to non-fasting inmates, and Smith began experiencing health issues again. On October 12, 2008, Smith and other fasting Muslims filed a complaint about the bag meals. The complaint was returned, citing multiple issues. Smith removed one sentence referring to medical issues and resubmitted the complaint. It was rejected again, and Thurmer affirmed the rejection.

         On October 16, 2008, Smith sought medical treatment for his health issues. He was given several medications, placed on a bland diet and continued to be treated for the next six to seven months. At some unknown time, Smith filed another grievance complaining about the Ramadan bag meals; Meisner dismissed his grievance.

         (3) The Years 2009 to 2011

         Smith makes similar allegations regarding the Ramadan bags in 2009, 2010, and 2011, and he claims that the defendants permitted this practice of giving unhealthy meal bags to continue until 2011.

         C. RLUIPA and First Amendment Claims Regarding Eid-ul-Fitr Feast Foods

         I granted Smith leave to proceed on RLUIPA and First Amendment claims arising from the denial of traditional Muslim feast foods for the Islamic holiday of Eid-ul-Fitr. On August 27, 2008, Smith and other Muslim inmates wrote to Hautamaki, Paliekara and Thurmer requesting to have traditional foods such as halal lamb and dates served at the Eid-ul-Fitr (feast after Ramadan fast), volunteering to pay for the feast. These defendants denied the request.

         On October 2, 2008, Smith was served a vegan dinner for Eid-ul-Fitr. Smith and other Muslims filed a joint grievance regarding “not being served a feast meal that was festive under Islamic tradition.” (Compl., dkt. 1, at 34.) Thurmer agreed with the rejection of that grievance. Smith contends that Waupun served festive items for Christian and Jewish traditions, including for Christmas and Hanukkah.

         Smith was again denied Halal and traditional foods for Eid-ul-Fitr in 2009. In July and again in September 2009, Smith wrote to Thurmer requesting Halal and traditional foods for this Islamic feast. On September 23, 2009, Tuckwell denied Smith's request stating that per DAI and DOC policy, no special foods will be used in the feast. Instead, a regular meal would be served as requested by Chaplain Paliekara and Program Director Hautamaki. Smith claims that this practice with respect to Eid-ul-Fitr food continued until 2011.

         D. Denial of Nutritionally Adequate Halal Diet

         I granted Smith leave to proceed on RLUIPA and First Amendment claims based on his allegations that the vegan plant-based Halal diet was nutritionally inadequate and not a proper Halal diet. In June or July 2008, Smith began receiving a vegan plant-based diet and he began having complications from the diet, including fatigue, headaches, constipation, intestine pressure and muscle and joint pain. On October 22, 2008, Smith was seen by a nurse, who informed Smith that she was removing him from the Halal diet because of his medical issues. After Smith objected, explaining that he was religiously required to eat only Halal meat and the vegan Halal diet was the only option, the nurse informed Smith that the vegan diet was nutritionally inadequate. On October 23, 2008, Smith was removed from the Halal diet and placed on a bland diet per order of HSU.

         Smith filed a complaint requesting that the Halal diet be modified to make the meal more nutritional and easy to digest. Meiser dismissed his complaint upon the recommendation that no policy required meat to be served, and the diet met the required nutritional standards. Smith filed another complaint in August 2008, similarly complaining about the vegan Halal diet, and requesting that the Halal diet be modified to exclude the vegan portion and to no longer limit him to a meat patty four times a week because that violated Islamic requirements. Defendants Paliekara, Beyah and Nurdeen disagreed with Smith's statement that limiting Muslims to four Halal beef/soy patties a week violated Islamic requirements. On November 4, 2008, Hautamaki, Lundquist and Thurmer denied Smith's request to modify the diet. According to Smith, this Halal diet continued until 2011.

         E. RLUIPA and First Amendment Claim Based on Denial of Religious Services

         Finally, I granted Smith leave to proceed on a RLUIPA and First Amendment claim that he was denied religious services due to a lack of volunteers. On September 28, 2009, Smith filed a grievance, in which he complained that Jumu'ah had been cancelled several times due to a lack of volunteers, that Ta'alim (or study group) had not been held in years, and that there were no other opportunities for Muslims to discuss, teach or learn in a group setting, in violation of the Qur'an. His complaint challenges DAI policy 309.61, which prohibits services from being held unless there is an outside volunteer available to hold them. Since then, ...


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